ALJ Alessandra Zorgniotti found that respondent, concrete testing laboratory, failed to comply with license conditions set forth in the former Building Code. Concrete testing laboratories conduct tests to determine the strength and durability of concrete used in various construction projects. The Department proved by a preponderance of the evidence that respondent failed to comply with license conditions in that it allowed someone who was not licensed to certify testing results. The proof showed that a professional engineer, who was not personally reviewing the results, had allowed respondent to use his professional stamp and seal and sign his name to certify test results. ALJ Zorgniotti additionally found that the respondent conducted testing after its license had been a suspended. She recommended that the respondent's concrete testing license be revoked. Dep't of Buildings v. Stallone Testing Laboratories, Inc. (in PDF), OATH Index No. 362/10 (Aug. 26, 2009).

ALJ Julio Rodriguez recommended a $1,650 fine and license revocation for a taxicab driver found to have assaulted and acted discourteously towards a passenger. The Commission established that the driver called a passenger stupid and then punched her in the jaw after the passenger refused to sign a second credit card receipt. Taxi & Limousine Comm'n v. Hossain (in PDF), OATH Index No. 2799/09 (Aug. 18, 2009).

The Taxi and Limousine Commission established that a taxi driver drove recklessly, and imprisoned, assaulted, and verbally harassed a passenger after she asked him to slow down. ALJ Zorgniotti found the driver's testimony to be rambling, repetitive, and at times inconsistent, while the complainant's testimony was straight forward, consistent, and comported with common sense. The ALJ dismissed charges that the driver refused to take the passenger to her destination, as the passenger voluntarily, but understandably, exited the cab before her requested destination. ALJ Zorgniotti recommended revocation of the driver's hack license and a $3,850 fine. Taxi & Limousine Commission v. Anderson (in PDF), OATH Index No. 3459/09 (Aug. 4, 2009).

ALJ Tynia Richard found that the petitioner, the City Clerk, had not proved by a preponderance of the evidence that the respondent's marriage license should be denied due to the 1999 marriage of an individual with the same name and birth date. While the respondent acknowledged that she had once been engaged to the individual named as the groom on the 1999 application, she testified that the engagement had been called off when she learned that he was only trying to get American citizenship. The respondent testified that she believed the groom had named her on the license in retaliation. She also testified that there were opportunities for him to copy her license which was used to obtain the 1999 license. Petitioner did not refute this evidence. ALJ Richard recommended the appeal of respondent's license denial be granted. Office of the City Clerk v. Patel (in PDF), OATH Index No. 3205/09 (Aug. 18, 2009).

The Contract Dispute Resolution Board, chaired by ALJ John Spooner, denied an electrical contractor's claim for additional compensation for costs it incurred when the Department of Sanitation initially changed the project specifications before reverting the specifications to what was originally required under the contract. While the contractor did not seek compensation for any work it did under the initial change, the delay caused its agreement to fix prices with its supplier on switchboards to expire. As a result of increased costs of metals and changes in the City's electrical code, the supplier charged the contractor more for the switchboards, which the contractor sought to recoup from the City. The Board found that the claim was a classic example of delay damages, over which it did not have jurisdiction. J.H. Electric of New York, Inc. v. Dep't of Sanitation (in PDF), OATH Index No. 2637/09, mem. dec. (Aug. 27, 2009).

The Fire Department proved that a fire protection specialist engaged in misconduct when he loudly refused to comply with his supervisor's instructions, regularly used profanity in the workplace, engaged in a physical altercation with his supervisor, and compared his workplace, Metrotech, with the Virginia Tech shootings, and himself with the shooter. Although the employee was highly regarded for his job-related knowledge and skills, ALJ Ingrid Addison found that retaining him posed a direct threat to the health and safety of others and recommended he be terminated. Fire Dep't v. Krasner (in PDF), OATH Index No. 2967/09 (Aug. 18, 2009).

ALJ Zorgniotti recommended dismissal of charges against a Board of Education custodian accused of failing to notify his supervisor about a gas emergency. She found that the record supported a finding that he was responsive to the gas emergency. She also found that contrary to the charge that the respondent had aggressively grabbed his supervisor's shoulder, the evidence, including a video, only established that respondent briefly touched his supervisor's shoulder to get his attention. Dep't of Education v. Fleishmann (in PDF), OATH Index No. 2273/09 (Aug. 6, 2009).

In a disciplinary proceeding, ALJ Faye Lewis found that the Department of Education established by a preponderance of the evidence that a clerical associate had been insubordinate and disrespectful towards two supervisors, as well as disrespectful towards a member of the public. The employee said in a loud voice, in front of several staff members, that a supervisor was a "freaking moron," and also refused to follow a direct order from a supervisor to answer a telephone call on a different date. She additionally spoke in a loud and hostile voice to a customer during a telephone call. ALJ Lewis recommended a penalty of 30 days suspension. Dep't of Education v. Smith (in PDF), OATH Index No. 2546/09 (Aug. 6, 2009).

The Department of Sanitation did not prove that an employee engaged in misconduct when he arrived late to work and failed to sign out. ALJ Joan Salzman noted that the employee had called his supervisor prior to his late arrival to alert him of an emergency situation. Since the Department's rules provide for emergency situations and the Department did not dispute the validity of the emergency, it cannot be the basis of misconduct. The ALJ also noted that the employee's failure to sign out was de minimis since the employee's supervisor had seen him at the end of the shift and his missing signature had no detrimental effects on the Department. The Department also did not prove that the employee had failed to supervise his workers on two dates when their trucks were light and did not go to the dump. The ALJ found that the trucks were light because other sanitation workers had poached the garbage, not because the workers were being unproductive. ALJ Salzman also found that the Department had failed to prove its third charge, insubordination. Where the order was ambiguous and the employee made a good faith effort to comply, the Department could not prove that he intentionally disobeyed. Dep't of Sanitation v. Seagers (in PDF), OATH Index No. 3547/09 (Aug. 26, 2009).

In a vehicle retention case, ALJ Rodriguez found that the Department was entitled to maintain custody of a vehicle seized pursuant to an arrest for operating a vehicle while intoxicated. The respondent's high blood alcohol content (.176%) at the time of his arrest, his failure to display remorse at the hearing and his failure to testify that he would not repeat his conduct established that returning the car would pose a heightened risk to public safety. Police Dep't v. Rodriguez-Toribio (in PDF), OATH Index No. 302/10, mem. dec. (Aug. 7, 2009).

ALJ Addison rejected an owner's innocent owner defense and found the Police Department was entitled to keep a car seized in connection with the driver's arrest for criminal possession and sale of marijuana and possession of a firearm. Because the owner knew the driver for ten years and was cognizant that he had been incarcerated for over four years during that time for drug related crimes, it was reasonable for her to anticipate that he would use her vehicle for the unlawful purpose of selling drugs. Additionally, the vehicle, one of three that she owned, was registered at the address of the driver. Police Dep't v. Carter (in PDF), OATH Index No. 248/10, mem. dec. (Aug. 10, 2009).

ALJ Rodriguez found that the Police Department was not entitled to retain custody of a vehicle seized in connection with respondent's arrest for operating a vehicle while intoxicated. The Department presented no evidence on whether there was reasonable suspicion to stop or approach respondent's car prior to the arrest. The Department's burden of establishing probable cause includes a showing that the initial stop or approach of a car was justified. This burden was not met. Police Dep't v. Ordaz-Torres (in PDF), OATH Index No. 511/10, mem. dec. (Aug. 27, 2009).

ALJ Zorgniotti admitted into evidence the tape-recorded sworn testimony of a deceased witness over respondent's hearsay objection. The ALJ found that the Dead Man's Statute did not apply in an administrative hearing. Even if it had, the ALJ noted, the witness's statements were declared against his own interest and were an exception to the hearsay rule. Likewise, the ALJ found that the Sixth Amendment right to confront one's accuser only applies in criminal proceedings and not in an administrative proceeding. The witness's death and the inherent reliability of his statements provided an adequate basis for admitting the testimony. Dep't of Buildings v. Stallone Testing Laboratories, Inc. (in PDF), OATH Index No. 362/10 (Aug. 26, 2009).